Home JOANNE M. BLAIR, administratrix, vs. PAUL T. KEATING.

354 Mass. 771

June 14, 1968

The administratrix of the estate of Robert A. Blair seeks recovery for Blair's death on the night of May 23, 1964, while riding a motorcycle pursued for several miles at high speed by a police cruiser with siren and dome light operating. Police officers had observed Blair riding his motorcycle that night after earlier police warnings not to do so because of complaints. See G. L. c. 90, Section 16 (as amended through St. 1961, c. 66; see later amendment by St. 1965, c. 239). We assume (without deciding) that some negligence in the conduct of the pursuit, on the part of the police officers, could have been found. See G. L. c. 89, Section 7 (as amended through St. 1961, c. 173), Section 7B (as inserted by St. 1934, c. 382; later amended by St. 1964, c. 182); c. 90, Section 25; Neil v. Hotyoke St. Ry. 329 Mass. 578 , 581-583; annotations 60 A. L. R. 2d 873, 890-893; 83 A. L. R. 2d 383. See also Hammon v. Pedigo, 173 Neb. 787, 799. Negligence, however, must be causally related to the injury if liability is to be imposed. Falvey v. Hamelburg, 347 Mass. 430 , 435. The police officers' testimony would not permit a finding either of negligence or of causal relationship. No testimony from persons sufficiently close to the accident scene, and no other evidence, would support a finding that any police negligence caused Blair's death. Inferences based on surmise and conjecture do not suffice. See LeBlanc v. Atlantic Bldg. & Supply Co. Inc. 323 Mass. 702 , 706; Fucci v. W. W. Welch, Inc. 329 Mass. 467 , 469; Helie v. Goldstein, 338 Mass. 22 , 24; Falvey v. Hamelburg, 347 Mass. 430 , 435-436. See also Luvera v. DeCaro, 317 Mass. 222 , 224; Knox v. Lamoureaux, 338 Mass. 167 , 169-170. Cf. Fant v. Zurich Ins. Co. 160 So. 2d 443, 446 (La. Ct. App.). We need not decide whether Blair's conduct constituted contributory negligence as matter of law. See Jones v. New York, N. H. & H. R.R. 275 Mass. 139 , 142-144; Baggs v. Hirschfield, 293 Mass. 1 , 2-4; Gambardello v. H. J. Seiler Co. 335 Mass. 49 , 52; Weir v. New York, N. H. & H. R.R. 340 Mass. 66 , 70-71; Grabos v. Loudin, 60 Wash. 2d 634, 636-638. The trial judge correctly ordered a verdict entered for Keating (in lieu of one for the administratrix taken on leave reserved).

Exceptions overruled.

Home MELROSE APPLIANCE CENTER, INC. & another vs. EASTERN ERECTION COMPANY, INC. & another.

354 Mass. 771

July 2, 1968

This action of tort was brought to recover for damage allegedly sustained by the plaintiffs as the result of a fire in Melrose on July 12, 1960. The case was tried to an auditor who found for the plaintiffs against both defendants. At the jury trial the plaintiffs offered the auditor's report and rested, as did the defendant Joseph Maggiore

Page 772

& Sons, Inc. (Maggiore). The defendant Eastern Erection Company, Inc. (Eastern) offered further evidence. The plaintiffs excepted to the denial of (1) motions for directed verdicts against both defendants; (2) certain requests; and (3) their motion for a new trial against the defendant Eastern, which the jury found not liable. The defendant Maggiore excepted to the denial of its motion for directed verdicts. There was error in denying the plaintiffs' motions for directed verdicts against Maggiore. The auditor's report, uncontradicted in any respect, was in evidence. In the circumstances of this case, all findings of fact on liability and damages were prima facie evidence possessing an artificial legal force which compelled the conclusion that the evidence was true and required "the judge to give effect to its unquestionable truth by a ruling or a direction to the jury." Cook v. Farm Serv. Stores, Inc. 301 Mass. 564 , 566, and cases cited. See Clark v. Turke, 345 Mass. 516 . The plaintiffs seek a new trial as against Eastern, arguing that the instructions to the jury so clouded the case against Eastern as it went to them that they returned verdicts which reflected their confusion. We agree. Substantial justice requires a new trial between the plaintiffs and Eastern. Tuttle v. McGeeney, 344 Mass. 200 , 208. Pilos v. First Natl. Stores Inc. 319 Mass. 475 , 479. Maggiore's exceptions are overruled. The plaintiffs' exceptions to the denial of their motions for directed verdicts are sustained as to Maggiore and overruled as to Eastern. Judgments are to be entered on the auditor's report in favor of the plaintiffs against Maggiore. There is to be a new trial between the plaintiffs and Eastern.

So ordered.